The demise of the death penalty for the mentally retarded.

• Author: Fougerousse, Philip

On June 20, 2002, the U.S. Supreme Court rendered its opinion in the case of Atkins v. Virginia, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), effectively eliminating the death penalty for mentally retarded defendants. In this historic opinion delivered by Justice Stevens, the Court declared:

Those mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes. Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants. Presumably for these reasons, in the 13 years since we decided Penry v. Lynaugh, 492 U.S. 302, 305 (1989), the American public, legislators, scholars, and judges have deliberated over the question whether the death penalty should ever be imposed on a mentally retarded criminal. The consensus reflected in those deliberations informs our answer to the question presented by this case: whether such executions are "cruel and unusual punishments" prohibited by the Eighth Amendment to the Federal Constitution. (1)

The case of Atkins v. Virginia came about when Daryl Renard Atkins and William Jones abducted Eric Nesbitt and drove him to an automatic teller machine. They made him withdraw cash and then took him to an isolated location where he was shot eight times and killed. Jones entered into a plea agreement with the prosecutor. In exchange for his testimony against Atkins at trial, Jones would receive a life sentence for his involvement in the crimes. The prosecutor could then seek the death penalty against Atkins.

At trial, Jones and Atkins each testified that the other had shot and killed Nesbitt. During the initial police interrogation of both men, Jones had declined to make a statement, while Atkins gave police a statement upon his arrest. At trial, the prosecutor used substantial inconsistencies in Atkin's statement to damage his credibility. The jury believed Jones and found Atkins guilty of murder. (2)

In the penalty phase of the trial, the defense offered expert testimony that Atkins had an I.Q. of 59 and was mildly mentally retarded. Regardless, the jury sentenced Atkins to death. The Virginia Supreme Court ordered a second sentencing hearing based on a defect in the verdict form. At the second sentencing hearing, the defense presented the same expert testimony and the prosecution rebutted with an expert who testified that Atkins was not mentally retarded but had an antisocial personality disorder. The prosecution's expert did not administer an intelligence test to Atkins. Again, the jury sentenced Atkins to death. (3)

What is Mental Retardation?

The Supreme Court has embraced the clinical definition of mental retardation, which has three parts: first is a subaverage intellectual functioning; second is significant limitations in adaptive skills (e.g., communication, self-care, and self-direction); and third, the symptoms must have manifested before the age of 18 years. (4)

The American Association of Mental Retardation (AAMR) classifies levels of mental retardation based on I.Q. scores. Mild is 50 to 70; moderate is 35 to 49; severe is 20 to 34; and profound is below 20. (5) The average I.Q. score for the population as a whole is 100, with the majority being between 80 and 120. Scores below 75 indicate subaverage intellectual functioning.

The second segment in defining mental retardation involves adaptive skills. Normally, people acquire these skills during childhood; mentally retarded people do not, and the deficits remain with them throughout their adult lives. Experts describe these limitations as follows:

Almost uniformly, individuals with mental retardation have grave difficulties in language and communication. They have problems with attention, memory, intellectual rigidity, and in moral development or moral understanding. They are susceptible to suggestion and readily acquiesce to other adults or authority figures.... People with mental retardation have limited knowledge because their impaired intelligence has prevented them from learning very much. They also have grave problems in logic...